Is there a unique perspective to transitional justice?
Ordinary justice and transitional justice are significantly and distinctively different. As many studies will show, the qualities of ordinary justice assume there is in place a reasonable democratic system. This paper will identify the features of ordinary justice compared to transitional justice. The focus will be on: definitional perspective, timing arguments, and limitations of transitional justice both substantive and procedural. The general hypothesis is: a level of uncertainty makes transitional justice unique because it requires a fresh perspective every time. There is indeed something unique that arises from uncertainty.
Transitional justice defined
The International Center for Transitional Justice (ICTI) defines transitional justice as “a range of approaches that societies undertake to reckon with legacies of widespread or systematic human rights abuse as they move from a period of violent conflict or oppression towards peace, democracy, the rule of law, and respect for individual and collective rights.”(1) Historically, the definition of transitional justice is: “conception of justice in periods of political transition.”(2) Transitional justice studies and literature find specific jurisprudence, moral and system and institutional issues of transitional governments. According to Murphy,(3) the transitional development often faces one common challenge: whether to use retroactive systems for criminal and civil justice from the old regime or to develop new ones. Furthermore, the author posits that there are arguments that there is no such thing as transitional justice and that it is just ordinary justice applied to a transitional period of a regime. A common argument is that an established democratic regime can practice transitional justice.(4) However, since states within the regime are not in fact in a period of transition, there is no conceptual difference from ordinary and transitional justice.
Where a mere series of changes within an already established democratic regime may claim to be practicing a transition in their justice system, these existing democracies are not old regimes emerging from times of war or becoming democracies, therefore they are not practicing transitional justice. These are systems and institutions of an existing democracy that may be in the process of systematic reform, but they are not practicing transitional justice because they are not created post-conflict during a political transition.(5)
The transitional government sets standards and legitimizes procedures for societies transitioning after a long period of conflict and repression from their regime.(6) For a transitional government to be successful, the repression and wrong-doings must be addressed and then further communicated to the community directly wronged and the public at large. As a response to “systematic or widespread violations of human rights,”(7) transitional justice associates with the regime authority and regime legitimacy. There exists a level of uncertainty within a transitional period of a fallen regime, that requires community healing and interest-based justices for mass violence and oppression which is often caused by the authoritative system that pre-existed. The timing is a distinctive trait within an emotional environment surrounding transitional governments.
During a transitional period, standards for the legitimate exercise of power by the state are in flux, with past standards not yet completely repudiated and new standards not yet fully consolidated. Whereas in an ordinary context of a stable, democratic regime there is a stable conception of justice, that legitimizes the exercise of a state’s power. Some challenges to this argument focus on the similarities between transitional and ordinary contexts. Posner and Vermeule(8) argue that there may in fact be nothing distinctive about transitional justice compared to those of stable consolidated democracies, that have the same changes of political order and justice. Furthermore, an argument could be made that there is an overlapping between the transitional period and the new regime when the legal reform takes place and often those in office maintain their roles through the transitional period into the new. Rebuilding the system needs a complex set of changes and procedures that basic existing concepts do not address and are necessary for political reconciliation to be possible. However, to challenge this idea, we must consider that in transitional contexts the old order was not liberal and the transitional period differs from it completely in character.
The timing and duration of transition for fallen governments into democracy is a critical one. It is important to keep in mind that the government’s transition does not end at the signing of peace agreements, yet continues for long periods thereafter. Transitional justice studies and literature identify specific jurisprudence, moral and system and institutional issues of transitional governments. The transitional development often faces one common challenge: whether to use retroactive systems for criminal and civil justice from the old regime or to develop new ones.
Limitations to transitional justice
The current available studies and literature highlight that justice during a government transition from authoritative to democratic requires a public disclosure of past wrongs. The dilemma surrounding punishment arises in the aftermath of a fallen regime where there may be a high demand that the immoral acts actions should be subject to severe punishment. Often during this shift, the persons to be punished are officials or power holders of the old regime. A new conception of justice which transcends upon the use of community-based interests and reconciliation has developed. Furthermore, for restoration and a reasonable expectation for social order to be possible, individual victims and individual perpetrators must be addressed otherwise the restoration of the new government will not be sustainable. The concepts in literature and research of reconciliation, political and civil, are unsophisticated for rebuilding communities that have suffered severe human rights violations because they are specific to issues and building relationships during transitions.
Consider the South African Truth and Reconciliation Commission (TRC) that in some cases granted amnesty to perpetrator of gross human rights violations – for the first time in the history of such commissions amnesty was granted when specific conditions were met. This was based on a more active victim-perpetrator reconciliation. Through its contributions the TRC aided the transformation of South African society from an unjust to a just one where justice refers to a kind of order that is valuable to the community to make their own decisions for political issues in a civil manner.
Transitional justice is nothing like ordinary justice, and it is unique and distinctive because each transitional government will have its own set of wrongdoings and human rights violations to address. There is no “one-size-fits-all” model and this is why each time a government or regime falls, the transitional will be distinctive to the issues and past wrongdoings at hand.
Ms. Golriz Moezzi received her Bachelor’s Degree from the University of California, Irvine in Criminology, Law and Society, a Jurist Doctor from the University of West, Los Angeles, and a Master’s Degree from California State University, Dominguez Hills in Negotiation, Conflict Resolution and Peace Studies. Ms. Moezzi wrote her thesis on introducing restorative practices to transitional governments. She has a passion in reformation to the transitional justice practices and intentional criminal justice.
International Center for Transitional Justice. (n.d.). https://www.ictj.org
Murphy, C. (2010) A Moral Theory of Political Reconciliation. Cambridge, Cambridge University Press.
Pham, P. & Vinck,P. (2007). Empirical Research and the Development and Assessment of Transitional Justice Mechanisms. International Journal of Transitional Justice, 1(2), pp. 231-248.
Posner E.A. & Vermeule, A. (2004). Transitional Justice as Ordinary Justice. Harvard Law Review, 117(3), pp. 761-825.
Teitel, R. (1997). Transitional Jurisprudence: The Role of Law in Political Transformation. The Yale Law Journal, 106(7), pp. 2009-2080.
Teitel, R. (2000). Transitional Justice. New York: Oxford University Press.
Winter, S. (2013).Towards a Unified Theory of Transitional Justice. International Journal of Transitional Justice, 7, pp. 224-244.
- International Center for Transitional Justice. (n.d.). https://www.ictj.org.
- Teitel, R. (2000). Transitional Justice. New York: Oxford University Press.
- Murphy, C. (2010) A Moral Theory of Political Reconciliation. Cambridge, Cambridge University Press
- Posner E.A. & Vermeule, A. (2004). Transitional Justice as Ordinary Justice. Harvard Law Review, 117(3), pp. 761-825; Murphy, C. (2010) A Moral Theory of Political Reconciliation. Cambridge, Cambridge University Press.
- Posner E.A. & Vermeule, A. (2004). Transitional Justice as Ordinary Justice. Harvard Law Review, 117(3), pp. 761-825; Winter, S. (2013). Towards a Unified Theory of Transitional Justice. International Journal of Transitional Justice, 7, pp. 224-244.
- Murphy, C. (2010) A Moral Theory of Political Reconciliation. Cambridge, Cambridge University Press; Winter, S. (2013). Towards a Unified Theory of Transitional Justice. International Journal of Transitional Justice, 7, pp. 224-244.
- International Center for Transitional Justice. (n.d.). https://www.ictj.org.
- Posner E.A. & Vermeule, A. (2004). Transitional Justice as Ordinary Justice. Harvard Law Review, 117(3), pp. 761-825.